Wik­iLeaks founder lurks be­yond grip of US law

The Con­sti­tu­tion clearly bans so-called ex post facto laws so that the govern­ment can't toss some­one in jail for some­thing that was le­gal at the time it was done.

The Pak Banker - - Editorial5 - Ann Wool­ner

At­tor­ney Gen­eral Eric Holder wants us all to know that the Jus­tice Depart­ment has be­gun a dead­se­ri­ous probe into Wik­iLeaks's re­lease of hun­dreds of thou­sands of in­ter­nal govern­ment doc­u­ments, many of them clas­si­fied.

It is an "ac­tive, on­go­ing crim­i­nal in­ves­ti­ga­tion," he told re­porters this week as news sto­ries stem­ming from the doc­u­ment dump ap­peared.

Pres­i­dent Barack Obama's top spokesman went fur­ther. Robert Gibbs called those re­spon­si­ble "crim­i­nals, first and fore­most."

You can say that Wik­iLeaks founder Ju­lian As­sange is reck­less and dan­ger­ous for mak­ing the doc­u­ments pub­lic.

You can say he's hurt the in­ter­na­tional con­ver­sa­tion among di­plo­mats and en­dan­gered the lives of in­no­cent peo­ple who have helped the U.S. in time of war, peo­ple who staked their lives on prom­ises of anonymity.

But be­fore you call some­one a crim­i­nal, you have to have a law that you can say he broke. Holder is go­ing to have a hard time do­ing that with As­sange.

If the at­tor­ney gen­eral were con­fi­dent, he wouldn't have an­swered a re­porter's ques­tion about dif­fi­cul­ties in pros­e­cut­ing As­sange this way:

"To the ex­tent there are gaps in the laws, we will move to close those gaps."

This is es­sen­tially an ac­knowl­edge­ment of a hole in the law. And even if pros­e­cu­tors can leap across that, they'd then face a re­ally big hur­dle in the form of the First Amend­ment.

Yes, Congress can pass new laws and amend old ones, and would no doubt be happy to do so if it meant lock­ing up As­sange. But it wouldn't.

New laws can't crim­i­nal­ize past con­duct. The Con­sti­tu­tion clearly bans so-called ex post facto laws so that the govern­ment can't toss some­one in jail for some­thing that was le­gal at the time it was done.

Be­sides, even if cur­rent law were suf­fi­cient, how would au­thor­i­ties bring As­sange, an Aus­tralian na­tive in hid­ing out­side the U.S., into this coun­try to stand trial?

Pre­sented with this ques­tion, Holder told re­porters that no one's for­eign cit­i­zen­ship or res­i­dence would pre­vent them from be­ing tar­geted. But that brings us back to this ques­tion: on what charge could he be in­dicted?

With­out that, As­sange could live next door to Holder and wave at him daily with­out fear of ar­rest as the nation's top pros­e­cu­tor went off to work.

No law crim­i­nal­izes civil­ian re­lease of clas­si­fied in­for­ma­tion, ex­cept in rare cir­cum­stance, such as re­veal­ing the name of an un­der­cover agent or dis­clos­ing se­cret codes. Bri­tain has an Of­fi­cial Se­crets Act, but prose­cu­tions are hard to mount, dif­fi­cult to win and easy to lam­bast as po­lit­i­cally mo­ti­vated.

All we've got is that World War I-era spy law, the Es­pi­onage Act of 1917. Rep­re­sen­ta­tive Peter King, the New York Repub­li­can and next chair­man of the House Home­land Se­cu­rity Com­mit­tee, sent Holder a let­ter this week urg­ing him to use the law to charge As­sange.

The best shot at mak­ing that work would be by prov­ing As­sange en­cour­aged the leak and con­spired with his in­side source to dis­gorge the doc­u­ments. An Army pri­vate first class has been charged un­der mil­i­tary law with some of the leaks.

And even if in­ves­ti­ga­tors can find a clear con­spir­acy be­tween the two, a rul­ing by a fed­eral judge in an­other case shows it isn't easy to use the spy law to pros­e­cute civil­ians.

"The govern­ment would still have to prove it was po­ten­tially dam­ag­ing to na­tional se­cu­rity, that he knew it was po­ten­tially dam­ag­ing, that he un­der­stood that his con­duct was un­law­ful," says Baruch Weiss, a for­mer U.S. pros­e­cu­tor who helped de­fend two lob­by­ists charged with vi­o­lat­ing that law.

"This would be a messy pros­e­cu­tion," says Weiss, a part­ner at Arnold & Porter in Washington.

There isn't much court prece­dent on the point, but the lob­by­ists got a boost from a 2006 rul­ing that limited the scope of the broadly writ­ten es­pi­onage law. The rul­ing, by U.S. District Judge T. S. El­lis III in Alexan­dria, Vir­ginia, helped per­suade Holder last year to drop the case against the two lob­by­ists for the Amer­i­can Is­rael Pub­lic Af­fairs Com­mit­tee.

They had been charged in 2005 for get­ting and pass­ing along con­fi­den­tial govern­ment in­for­ma­tion in a way they claimed was per­fectly le­gal and com­mon in Washington.

Any pros­e­cu­tion of As­sange would come up against First Amend­ment is­sues. How can you crim­i­nal­ize speech, es­pe­cially po­lit­i­cal speech, es­pe­cially on mat­ters of grave pub­lic im­por­tance? That would seem to fly in the face of the Con­sti­tu­tion's prom­ise of a free press and free speech.

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